Yes. The Federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA), the major laws covering individuals with disabilities do not affect your employer’s right to prohibit alcohol and illegal drug use at the workplace. Employment rules prohibiting current drug or alcohol use are permissible so long as they are uniformly applied, since current (as opposed to rehabilitated) alcoholism and drug addiction are not protected by either the ADA or the FEHA.2. Prior to being hired, can an employer ask about my drug or alcohol use?
Prior to being offered a job, your employer may ask you about your current use of illegal drugs because an individual who currently uses illegal drugs is not protected under the ADA or the FEHA. However, your employer may not ask you questions about your past use of drugs that might reveal a former addiction such as, “How often did you use illegal drugs in the past?” “Have you ever been addicted to drugs?” “Have you ever been treated for drug abuse or addiction?” Also, your employer cannot ask about your lawful drug use if the question may reveal that you have a disability. For example, questions like, “What medications are you currently taking?” or “Have you ever taken AZT?” certainly elicit information about whether you have a disability. (Note: If the employer is administering a test for illegal drugs, it may ask about your lawful drug use in order to screen out false positives. Please see below for more information.)
Once you have been given a job offer contingent upon passing a medical exam or “physical,” your employer may ask about drug use as long the question is related to the job you have been offered and all entering employees in the same job category must be subjected to the same examination or inquiry.
Your employer may ask about your alcohol use unless the question is likely to elicit information about alcoholism, which is a disability. For example, your employer may ask you whether you drink alcohol, or whether you have been convicted for driving under the influence because these questions do not reveal whether someone has alcoholism.
However, questions asking how much alcohol an applicant drinks or whether s/he has participated in an alcohol rehabilitation program are more likely to elicit information about whether the applicant has alcoholism.3. Can an employer require that I take a drug or alcohol test before I’m offered a job?
Yes. An employer may give a drug test to any applicant. A drug test is not a medical examination and is not subject to any of the restrictions under the ADA or FEHA. However, all applicants must be subjected to the same test. The employer can’t single you out because you have a disability. If you do test positive for drug use, your employer can use the results as the basis for deciding whether or not to hire you. Any information obtained through a drug test must be treated as confidential medical information and maintained in separate files.
A test for alcohol, as compared to illegal drugs, can be considered a medical examination and is therefore not allowed. Alcoholism can be considered a disability under the ADA or FEHA so the allowable inquiries are different than for illegal drugs. Before you have been offered a job, an employer cannot require you to take an alcohol test. After you’ve been conditionally offered a job, an employer can require you to take an alcohol test, so long as everyone is required to do so.4. Can my employer require a drug or alcohol test once I have begun working? Can I be fired for testing positive?
Drug testing of current employees is allowed only in limited situations:
Generally, employers cannot subject employees to regular alcohol testing. After you have begun working, your employer can only inquire about your alcohol use if it is job-related or they can demonstrate a legitimate business interest in order to do so. This means that the employer must have a reasonable belief based on objective evidence that: (1) your ability to perform essential functions will be impaired by alcohol; or, (2) you will pose a direct threat because of your alcohol use. When determining whether to subject you to periodic alcohol testing, your employer should consider the safety risks associated with the position you hold, the consequences of the your inability or impaired ability to do your job, and the reason(s) why the employer believes that you will pose a direct threat.
An employer may maintain and enforce rules prohibiting employees from drinking alcohol and/or being under the influence of alcohol in the workplace and may conduct alcohol testing for this purpose if she has a reasonable belief that an employee has been drinking during work hours or is under the influence of alcohol while at work.5. I’m on medications for my disability. Can these medications cause a false positive on a drug test? What should I do if this happens?
Medications—and not illegal drugs—may cause a positive reading on a drug test. If you are worried about a false positive, you may want to tell the drug lab conducting the test about the medications you are using. Tell the lab that it must keep this information confidential. You should also ask the lab to conduct additional tests to screen out the possibility that your prescription medicine caused the results. On the other hand, you may wish to keep your information about your medications private and take your chances on the drug test. If you do test positive, you may challenge any subsequent action based on the grounds that the positive result was caused by medication you take under medical supervision.6. Can I be fired for using marijuana to treat my disability?
Probably. The ADA and FEHA do not prohibit employers from disciplining or terminating employees for marijuana use, even when marijuana is used as a “reasonable accommodation” and when it is used in accordance with California’s medical marijuana law.7. Can my employer fire me because I’m an alcoholic?
No. Alcoholism can be considered a disability under the ADA or FEHA if alcoholism “substantially limits” your major life activities. Therefore your employer may not make adverse employment decisions merely because it knows you are an alcoholic.
Your employer can always fire you for the use of alcohol while on the job. And your employer can fire you for misconduct or poor performance, even if it’s related to your alcoholism. For example, you can be fired for being repeatedly late for work, even if you’re late because you’re hung over. An employer may hold an individual who is an alcoholic to the same standards for employment or job performance and behavior that it holds other employees to, even if any unsatisfactory performance is related to the alcoholism.8. Am I protected under the ADA or FEHA as a rehabilitated drug user?
Current use of or addiction to illegal drugs is not a disability under the ADA or FEHA and not protected. But if you are a former abuser and you are being or have been rehabilitated and you no longer use illegal drugs, employer practices or rules that discriminate based on past addiction may be unlawful. Merely enrolling in a rehabilitation program is not enough to protect you; abstaining from drug use is essential and you must have stopped using for a “significant” period of time. Employers may require employees who have completed or are participating in drug rehabilitation programs to take random drug tests.9. What if I am currently employed and want to enroll in a drug or alcohol rehabilitation program?
In California, private employers with 25 or more employees must reasonably accommodate employees who wish to voluntarily enter and participate in an alcohol or drug rehabilitation program. Your employer must provide unpaid time off (or permit the use of any accrued paid sick leave) for this purpose, provided that such accommodation does not impose an undue hardship on your employer. This accommodation must be accompanied by “reasonable efforts to safeguard the privacy of the employee,” including the fact that he or she has enrolled in a rehabilitation program. However, if you are unable to perform your duties because of drug/alcohol use, or you pose a threat to the health or safety of yourself or your coworkers, your employer is not required to continue to employ you.